On appeal from the First Judicial District Court of Middlesex County.
For the appellant, Cox & Walburg (William H. D. Cox, of counsel).
For the appellee, Louis L. Hendler.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question to be decided on the facts of this tort action is whether the trial judge erred in the submission of the case to the jury.
Defendant is the lessee of the building located at the intersection of Morris and George Streets, in the City of New Brunswick, New Jersey. It sublets parts of the premises but occupies and operates the corner section thereof as a market place, known as "The Big Bear." There are three "window wells" partly in the side of the building on Morris Street and partly in the sidewalk on the same street. They were not constructed by the defendant but serve, as designed, to admit light and air to the basement of the premises leased by defendant. Each "window well" is covered by an iron grating. Each grating is flush or even with and constitutes part of the sidewalk for the use of the public. The grating in question, the middle one, is about 47 1/2 inches long, about 18 1/2 inches wide and covers an excavation about 27 1/2 inches deep.
In the forenoon of December 29th, 1941, plaintiff, while walking on Morris Street, stepped upon the middle grating, it tilted, gave way her and precipitated her into the areaway.
To recover damages sustained as a result of her fall, plaintiff sued defendant. In support of her charge of actionable negligence against defendant, she offered proofs to establish that the grating was "structurally defective" and in an "unsafe condition." Defendant, on the other hand, offered proofs to establish that the grating was "not defective," that the grating and its "construction" fully complied with "standard types of grating and construction," that defendant was free from any "negligence," and that it had no knowledge, "either actual or constructive" that the "grating was out of place at the time of the accident." These proofs, over denial of
motions of nonsuit and to direct a verdict in favor of the defendant, were submitted to the jury. It returned a verdict of $250 in favor of plaintiff. From the judgment, based upon that verdict, defendant appeals.
Defendant argues that the trial judge erred in denying its motions of nonsuit and to direct a verdict and in his charge to the jury.
1. As to the stated motions. The applicable law in this class of cases is settled. The construction of the grating even or flush with the sidewalk is not a "nuisance per se." But it is a "thing the adjacent owner might do subject to the right of free and safe passage of the public over and along every part of the sidewalk." In making such use of the sidewalk, the owner is, however, legally bound "to do so by such a method of construction as not to create a nuisance," and is further bound "to exercise reasonable care to keep the structure safe for the use ...